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Voting Rights Act: The Legacy of the 15th Amendment

“The historic accomplishments of the Voting Rights Act are undeniable. ” —Chief Justice Roberts, NAMUDNO v. Holder

June 30, 2009

“The historic accom­plish­ments of the Voting Rights Act are undeni­able. ”

—Chief Justice Roberts, NAMUDNO v. Holder

Last week, the Supreme Court avoided a consti­tu­tional chal­lenge to a crit­ical compon­ent of the Voting Rights Act by a small util­ity district in Austin, Texas in the case NAMUDNO v. Holder.  This ruling is an import­ant one because it rightly left the Voting Rights Act, prob­ably the nation’s most success­ful piece of civil rights legis­la­tion, fully intact and capable of perform­ing the import­ant duties with which it was tasked, namely that of fight­ing racial discrim­in­a­tion in voting.  

As the Court recog­nized, the Voting Rights Act is respons­ible for much of the progress we have achieved towards equal­ity in voting.  Liter­acy tests, grand­father clauses, “good char­ac­ter tests”-all were made illegal by the Voting Rights Act.  Other provi­sions, like the one at issue in the NAMUDNO case, required that certain juris­dic­tions, those which have had demon­strable histor­ies of discrim­in­a­tion in voting, seek “pre-clear­ance” or certi­fic­a­tion in advance from the Depart­ment of Justice or a court that certain proposed changes to their elec­tion systems would not have a negat­ive effect on the voting rights of racial and ethnic minor­it­ies. 

The Voting Rights Act, while import­ant for our coun­try’s future, also plays an import­ant role in our past because the Voting Rights Act is our greatest legacy to the 15th Amend­ment.  At the begin­ning of 1867, a few years before the 15th Amend­ment was passed and rati­fied, there were no federal laws guar­an­tee­ing the voting rights of any African-Amer­ican males.  But before 1868 ended, all that had changed.  In 1867, the Recon­struc­tion Congress passed legis­la­tion enfran­chising African-Amer­ican males in the District of Columbia, over­rid­ing a pres­id­en­tial veto in oppos­i­tion.  Within the same month, Congress over­rode a second pres­id­en­tial veto and passed legis­la­tion giving African-Amer­ican men the right to vote in other geographic areas subject to federal control.  A few weeks later, Congress condi­tioned the Territ­ory of Nebraska’s admis­sion into the Union upon abol­ish all racial qual­i­fic­a­tions on voting.  Most signi­fic­antly, in the First Recon­struc­tion Act, Congress refused to re-admit the former Confed­er­ate states into the Union unless the states amended their consti­tu­tions to allow voting by male citizens “of whatever race, color, or previ­ous condi­tion” and required that these states not amend their consti­tu­tions in the future to deprive any citizen or class of citizens the right to vote. 

So before the 15th Amend­ment was passed, Congress had already form­ally enfran­chised African Amer­ic­ans in the former confed­er­acy and the feder­ally-controlled territ­or­ies.  But the Recon­struc­tion Congress knew that those acts were not suffi­cient for a right as funda­mental as the right to vote.  A consti­tu­tional amend­ment was needed to make sure the gains that had been achieved were not rolled back by circum­ven­tion (such as private or state-sanc­tioned viol­ence or intim­id­a­tion) or future elect­oral major­it­ies with discrim­in­at­ory inclin­a­tions.  And so, the Recon­struc­tion Congress passed, and the states rati­fied a 15th Amend­ment designed to prevent back­slid­ing and to ensure a continu­ing role for Congress in the erad­ic­a­tion or racism in voting.  It was broad in its scope in that it gave Congress wide latit­ude, but narrow in its focus in that it covered only where racial discrim­in­a­tion inter­sec­ted with voting.  The 15th Amend­ment’s oppon­ents balked about the shift the Amend­ment created in the rela­tion­ship between federal and state govern­ments by trans­fer­ring to the federal govern­ment primary respons­ib­il­ity for elect­oral qual­i­fic­a­tions related to race, an area that had been once left exclus­ively to the states, but the Amend­ment’s proponents stood firm that the Amend­ment had to bestow upon Congress the power to combat racism in voting in the future.  After the Amend­ment passed, Congress util­ized this power to pass Enforce­ment Acts after the 15th Amend­ment that were broad and expans­ive, and an anti-Klu Klux Klan Act—all reflect­ing Congress’ inten­tion that its powers be at their zenith when it was protect­ing racial minor­it­ies from discrim­in­a­tion in voting.

Congress’ broad and bold actions were squashed by the Supreme Court, which issued rulings emas­cu­lat­ing the strength of the Enforce­ment Acts.  For almost 75 years, the nation slipped into Jim Crow.  We might still be there if Congress had not acted again under its broad 15th Amend­ment powers to enact the Voting Rights Act of 1965.  The Voting Rights Act seeks to protect, as did the 15th Amend­ment, current exer­cises of the right to vote, but also like the 15th Amend­ment, it seeks to ensure that voting rights are not curtailed by future state beha­vior.  This is done in large part by the “pre-clear­ance” provi­sions at issue in the NAMUDNO case, which does not allow proposed state changes to their elec­tion prac­tices to be imple­men­ted until it can be certi­fied that the change will not have a negat­ive effect on the voting strength of a racial group.

The Voting Rights Act effect­ively revived Congress’ role in combat­ing racism in voting from the dormancy it was cowed into by the Supreme Court.  And Congress amended and reau­thor­ized the Act.  Most recently, in 2006, after review­ing volu­min­ous evid­ence of present-day discrim­in­a­tion and hold­ing extens­ive hear­ings, Congress made the near-unan­im­ous policy determ­in­a­tion that there still remained work for the Voting Rights Act and its pre-clear­ance provi­sions to do and that the Act should be reau­thor­ized.

The Act is a modern-day rejec­tion by our coun­try of racism in voting, and I for one am proud that our elec­ted repres­ent­at­ives made such a state­ment.

In the case, the util­ity district, named the North­w­est Austin Muni­cipal Util­ity District (and from where the acronym “NAMUDNO” comes from in the case name), argued that it should be allowed to seek a stat­utory exemp­tion from the Act’s pre-clear­ance provi­sions that affected the entirety of the state of Texas.  NAMUDNO further argued that if it were not entitled to the stat­utory exemp­tion, then the Voting Rights Act must be struck down as an uncon­sti­tu­tional intru­sion of Congres­sional power into state sover­eignty.

Eight Justices concluded that NAMUDNO should be allowed to “bail-out”-the term used for a juris­dic­tion which seeks exemp­tion from the pre-clear­ance provi­sions – leav­ing Justice Thomas stand­ing alone in his argu­ment that the Court should have struck down the relev­ant sections of the Voting Rights Act today.

There is no doubt that the decision is a victory for voting rights, espe­cially because the activ­ists who recruited NAMUDNO for the chal­lenge sought whole­sale destruc­tion of the Act’s pre-clear­ance provi­sions.   But the decision was what lawyers would call a “narrow” ruling.  Because a major­ity of Justice concluded that NAMUDNO was entitled to the exemp­tion, the Court did not need to decide whether the pre-clear­ance provi­sions were a consti­tu­tional exer­cise of Congres­sional power.  While the decision does not fore­close future chal­lenges to the consti­tu­tion­al­ity of the Act, if and when they come, the Court should remem­ber that the 15th Amend­ment amply and clearly supports giving Congress much defer­ence in its determ­in­a­tions as to how to best combat race discrim­in­a­tion in voting and the power to take the steps to effec­tu­ate that determ­in­a­tion.